Les Green on law, philosophy, and some other passions

Should Parliamentary Sovereignty Trump Popular Sovereignty?

On June 23rd the UK referendum on membership in the European Union delivered a clear, if narrow, result: the country should leave. Much still remains open, but as far as that issue is concerned, the matter is decided. I’m sure that British voters had no view about which mechanism would transfer their decision into law; but they understood that something would. No one supposed that a clear result might be treated as a helpful hint to politicians, or as a preliminary comment in a national seminar on the constitution.

Today’s judgment in the High Court repudiates that understanding. (R (Miller) v Secretary of State for Exiting the European Union). Lord Thomas of Cymgiedd CJ, Sir Terence Etherton MR, and Lord Sales decided that the UK executive lacks any power to transmit the will of the people into law by triggering the notification procedure for exit that is outlined in the EU Treaty. The court holds that the absolute sovereignty of Parliament must be respected, and that such prerogative power as the executive has to act in international affairs, including treaties, can never repeal rights in domestic law. So Parliament must still decide whether to leave the EU. The matter remains open.

The breadth of the doctrine is breathtaking. The court does not merely say that Parliament is not, in this case, strictly bound by the referendum result; it declares that any popular vote is of zero legal relevance until Parliament expressly chooses otherwise. It is not even legally persuasive: ‘a referendum on any topiccan only be advisory for the lawmakers in Parliament unless very clear language to the contrary is used in the referendum legislation in question.’ [emphasis added]

If the Supreme Court confirms this decision, the entire national debate on the EU can begin over: in the House of Commons, in the (unelected) House of Lords, then possibly back again to the courts, or maybe even the electorate. And that is what the claimants want: delay and time for second thoughts and further lobbying–not on the ground that the referendum result was unclear or the procedure unfair, but on the ground that the question was wrongly decided.

I agree that the question was wrongly decided. I also think that referendums are a very poor instrument of ordinary governance. But when what is at stake is the boundary of a constitutional people, we have no better procedure than a referendum, and courts should use their powers to uphold, rather than undermine, the result. Those who regret the result (as I do) should spend less time trying to overturn or forestall it, and more time trying to rally opinion around one of the better options that it has left open. Lawyers shouldn’t feel sidelined: whatever happens there will be work for them.

Democracy is government by the people. But the definition of ‘the people’ is not a matter solely for Parliament. It is matter prior to parliamentary democracy, and the legitimacy of Parliament depends on settling it correctly. The people have a right to decide for themselves the most basic terms of their constitution, including the people who will empowered by that constitution. That is why it is for Scots to decide whether to remain in the UK—and not for the UK as a whole; and why it is for the British to decide whether to remain in the EU—and not for the other member states.

What we might call English Constitutional Theory has long distrusted popular sovereignty. An influential line of thought running from Hobbes, through Blackstone and Bentham, to Dicey and Jennings, equates popular sovereignty with Parliamentary sovereignty. Even today, the High Court repeats with approval Dicey’s words : ‘The judges know nothing about any will of the people except in so far as that will is expressed by an Act of Parliament’. Of course, it is plausible to think that the ‘will of the people’ needs practical expression. But when we have—as Dicey did not—lawfully organized and fair referendum procedures, it is implausible that only an Act of Parliament can ever speak for the people.

The UK has a fluid, informal constitution, and when disputes about its basic ground rules reach our courts, they generally lie in a penumbral zone where, whatever judges pretend, their decisions not only have political consequences but are made, and can only be properly made, on grounds of political morality. There are no ‘purely legal’ decisions at this level.

Today’s decision sidelines an important principle of political morality. It is not inexorably driven to do so by law or by logic. The judgment depends on two propositions that remain as debatable after the decision as they were before: (1) that the UK’s notification to withdraw from the EU cannot be made conditional on anything, and (2) that the European Communities Act 1972 not only gives EU law direct effect in UK courts, but also makes it part of UK law. Since the parties all accepted (1), the court did not test it. On (2), the court rejected the government’s argument that rights of British citizens under EU law result from an interaction of domestic and European law, and do not rest in domestic law alone. Legal philosophers have struggled with the general issue at stake in (2). Compare: if conflict-of-laws rules sometimes require English courts to give effect to French law, does that make French law part of domestic English law? It is a delicate question. The Court makes short shrift of it. Oddly, given its enthusiasm for Dicey’s doctrine that Parliament is omnicompetent, and its insistence that it only addresses ‘purely legal’ questions, the court declares (2) wrong because it is unrealistic: ‘In a highly formalistic sense this may be accurate. But in our view it is a submission which is divorced from reality.’

I wish the court’s desire to shape the law with an eye to reality had gripped it in some more helpful way. Since the UK is a union of peoples, not just one people, the declaration that any referendum, on any matter at all, can only ever be advisory will not go down well in Scotland, or in Northern Ireland. Nor will the conclusion, which follows inexorably, that Westminster can by explicit legislation repeal the Scotland Act 2016, notwithstanding what ‘a decision of the people of Scotland voting in a referendum’ (s 63 A) might have to say about the matter. Does the Act itself give such a referendum legal force? If so, it only takes a simple majority, which might consist only of English MPs, to amend or repeal it.

Contrast the more sensitive, and sensible, approach of the Supreme Court of Canada when addressing the constitutional significance of a possible referendum result in favour of Québec independence:

‘The continued existence and operation of the Canadian constitutional order cannot remain indifferent to the clear expression of a clear majority of Quebecers that they no longer wish to remain in Canada. This would amount to the assertion that other constitutionally recognized principles necessarily trump the clearly expressed democratic will of the people of Quebec.’ (Reference re Secession of Quebec, [1998] 2 S.C.R. 217)

The formulation is inexact, but the idea is sound. The idea that ‘other constitutionally recognized principles’ necessarily trump any clear expression of popular sovereignty is a danger to the continued existence and operation of any constitutional order. The Canadian Court knew that to endorse that idea could risk national calamity. By their judgment they changed, if only marginally, the basic ground rules of the Canadian legal system. It was a wise move. Perhaps our Supreme Court will follow it?

Popular sovereignty is a moral ideal. Parliamentary sovereignty is an institutional device, helpful where it secures important values, but a hindrance when it does not.

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Professor Green, could you clarify something for us non-lawyers? Under what legal system was this case brought? (Is there a relevant distinction here between English and Scots Law?) You write “English Constitutional Theory has long distrusted popular sovereignty.” I take it the qualification of “English” here reflects that Scots Constitutional Theory hasn’t been so distrustful — MacCormick v Lord Advocate, etc., etc.

Could there be a separate case brought under Scots Law, with the application of distinctively Scots Constitutional Principles? How would clashes be resolved in such a case? And under which legal system?

The Court expressly says it is discussing the issue as it arises only under the law of England and Wales. It does not consider the issue of the devolved governments. But constitutional matters in any case are reserved to Westminster, so will not be adjudicated under Scots law. As you say, however, Scots lawyers have historically been much less impressed with the doctrine of absolute parliamentary sovereignty than have English lawyers. (Which is way I cheekily call it the English Constitutional Theory-ECT: a shocking doctrine to many Scots. )

Thanks for that explanation. I’m not sure I understand quite how devolution/reserved powers enter into the equation (though I fear this just shows how little I know about the whole thing!) It’s surely not that English Law applies to reserved issues, and Scots Law to devolved issues? (*All* issues were reserved to Westminster before 1998 — but there were cases tried under Scots Law!)

It is interesting that you should bring in the Canadian example, because arguably, under the terms of the court’s decision you cite, a referendum result of 51.89% for the Yes side is *not* a “clear” decision. In fact there is much debate in Canada on what counts as a “clear result” and a “clear question”, with those who take 50%+1 as a “clear result” to upend the status quo seen as fairly radical. Of course, no one is willing to say *exactly* what would count as a “clear” result, but many people think that such a small majority (such as 1.89% over 50%) is not sufficiently clear, especially on such a consequential question. The idea is that such a result is not unambiguously a clear expression of the will of the people.

My other question is this: Is it not true that there is no legal mechanism for the executive to turn a referendum into action? By what constitutional procedure can they claim to do so? I had always thought that referenda were always technically “advisory” (in UK/Canada/Aus/NZ, anyway), but that given the outcome of one, it would be politically foolhardy for the government of the day to ignore it and fail to pass legislation to the effect of the referendum result. So in my mind the question is not the legal one of whether the referendum result should be enacted by the executive without a vote in parliament (which it seems clear to me that it cannot do, I guess I side with the judges on this), but rather the *political* question of whether or not the parliament should go with, or go against, the referendum result, when it votes on starting the Brexit procedure.

I think there are two dimensions on clarity: the question, and the margin of victory. I think that unless there is express provision for a supermajority rule, the ordinary rule prevails. Let us say, the margin it takes to elect an MP. For reasons given in the post I don’t accept the ‘legally OK/ morally wrong’ distinction when we are taking about indeterminacy in the rule of recognition. There is no legal clarity to be had. The court’s ‘analysis’ of (2) is worse than perfunctory.

In the absence stated rules, what is a clear referendum voting result is always debatable. But let us not overlook one fact: the voters turnout rate for the 2016 EU referendum was 72.21%, that for the general election 2015 was 66.4%, being 1.3% up compared to the previous general election already. There is another point. UK’s EU membership has always been a highly charged political issue since Edward Heath took the country into the then European Economic Community (EEC), the forerunner of EU. For this reason, whatever the result in the 2016 EU referendum, the majority would not have been above 2.5%. That in other words, if it was the Remain side who secured the majority in the 2016 EU referendum, the majority would not have been above 2.5%. If there was to be a re-run, I would expect a similar majority either way.

I don’t think this is quite right. The decision is not one that substitutes the will of parliament for the will of the people. Rather it is about who has the authority to give effect to the will of people – the government acting under the royal prerogative with the queen as the people’s representative or the queen in parliament as the people’s respresentative. I think constitutionally they are quite right to affirm that it has to be the latter – that is the constitutional position. Where the court went wrong is in giving rise to the thought that they were possibly suggesting in the redundant passages about whether article 50 was revocable or not that Parliament could act against the people. I see no basis for that pragmatically, constitutionally or on the basis is of political morality – there I agree with you. But the referendum decision does not say anything beyond that the UK should leave the EU – nothing about when and under what terms and that should surely be a matter that Parliament has some say over.

“Democracy is government by the people. But the definition of ‘the people’ is not a matter solely for Parliament. It is matter prior to parliamentary democracy, and the legitimacy of Parliament depends on settling it correctly.” Well indeed. So your case seems to me to be somewhat problematic in the light of there being no natural definition of “the people”. In fact Parliament excluded from the ballot large numbers of people subject to the law (most EU nationals, over 16s etc) and many others (UK nationals who are long-term residents in the EU) who might be thought to have a moral right to a say.

The Canadian Supreme Court required a “clear majority” in favour of independence. To the Parti Quebecois’s assertion that 50% +1 would be enough, Stephane Dion replied, “If 50% +1 is a clear majority, what’s an unclear majority?” The court’s view, in other words, seems to be that more than a narrow majority is needed to override other constitutional principles. Do you agree? If so, do you think the Brexit majority was large enough to count as “clear” by Canadian Supreme Court’s standards?

“The court does not merely say that Parliament is not, in this case, strictly bound by the referendum result; it declares that any popular vote is of zero legal relevance until Parliament expressly chooses otherwise.”

But that is surely completely orthodox, and wasn’t in dispute! Under the English constitution (I deliberately don’t say “UK constitution”, because I don’t know enough about Scots law to know if it’s different) power derives either from common law, or from statute. There is no third source. No common law power attaches to any “popular vote”, so one has to look to the statute under which the vote was carried out to see what significance attaches to it. And in this case the answer was clear on the face of the statute and uncontested by any party: none. The Referendum Act could have but didn’t authorise or require the government to act on the vote. Given that all that is something known to every first year undergraduate, let alone parliamentary counsel, why would anyone think that the Referendum was of any legal significance? It wasn’t, and isn’t, and nobody in the case suggested that it was.

The power to serve an Article 50 notice has to be found in common law or statute. Everyone agrees that there is no statutory power. The question in the case was whether there was a common law power. Everyone also agrees (a) that there is a common law power which would normally allow the executive to serve the notice (“the prerogative to conduct international relations”) and (b) that prerogative does not survive if statute (one really shouldn’t say “parliament”, which in this context is ambiguous) has expressly or impliedly curtailed it. There was no express curtailment, but the court found implied curtailment. That was really the only issue. Close question, but not the question you pose.

Nor was the point you make the one that the court thought “formalistic”. That point was an argument (which I happen to think quite a good one) that the ECA incorporates/gives effect to the Treaty rights, which include Article 50, so that the ECA cannot tell one that the prerogative cannot be used to trigger Article 50. The contrast with “reality” was not as you suggest some reference to “political reality”, but to the idea that this is really too clever by half and that the constitutional reality of the ECA was that it evinced an intention that European rights should be practically available to citizens, not merely that they should be conditionally available so long as HMG has chosen not to serve an Article 50 notice. That might be wrong — but it is not wrong in the way you suggest. If the prerogative power had survived in that way, it would have survived whether or not there was a referendum. There simply is not argument that would be recognised as a competent one in English law under which the prerogative could have survived but been capable of being used only in response to a popular vote.

In short: you are criticising the court as if it had rejected an argument that nobody made. It’s true I suppose that the reason nobody made them is that they would certainly have failed, and perhaps that reflects a blemish on English constitutional law, but it’s a bit much to expect a Divisional Court in a controversial case to remake the constitution.

Paul: I think Les’s principal suggestion is that the High Court had the power (which he thinks they should have exercised) to move the constitution away from the orthodoxy by distinguishing the present case from the orthodox cases (those in which it was ruled that only Parliament can extinguish rights that Parliament conferred). How? As Les notes, the High Court could not distinguish these cases by taking the line (a) that Art 50 could be deactivated after activation, i.e. that the rights might not after all be extinguished. For it was conceded by the Government deactivation of Art 50 after activation would be impossible. Therefore the High Court should, Les suggests, have drawn the following quite different distinction (b) instead.They should have said that the orthodoxy applies only to rights conferred by Parliament that form part of English law. A possible view, thinks Les, is that rights under the ECA do not form part of English law but are only given effect to in English law. That view was put to the court and the court rejected it with the ‘formalistic’ comment.

The problem with Les’s suggestion is that there is ample binding authority to the effect that EU law is indeed part of English law under the ECA. Just do a Westlaw search for the phrase ‘part of English law’ and see all the High Court and Court of Appeal cases in which the matter has been pronounced upon, not always obiter. It was not open to the High Court, therefore, to draw the distinction (b) that Les suggests without breaching stare decisis. The Supreme Court, however, is not so restricted (it has the power, held over from the HL Practice Direction, to overrule even its own decisions) and it could imaginably draw the distinction that Les mentions, thereby changing the constitution.

I am not sure why Les adds his quite orthogonal remarks about the indeterminacy of the applicable constitutional rules (never mind the rules of recognition). As you say, Paul, there is no indeterminacy in the neighbourhood. A referendum is not a source of law. But the court does have the ability to change the constitution even when it is determinate by altering the scope of particular constitutional rules, such as the rule that only Parliament can extinguish rights that Parliament conferred. Since there is binding authority on this point, the High Court can only do this by distinguishing, which would not have availed them in the present case for the reasons I just gave. The Supreme Court, however, can do it by distinguishing or by overruling, which they might yet be tempted to try.

I hope they will resist the temptation. They should not carve out any exception to the rule that only Parliament can extinguish rights that Parliament conferred. They should not make an exception for the ECA on the ground (a) or (b) suggested by Les. Still less should they do so by making a special exception for referenda, which is where Les’s argument subsequently take us. Least of all should they do so in order to accommodate within the constitution possible future secessions by Scotland or Northern Ireland, which are where Les’s interest really lies. The courts in England should stick to the long-established way in which English law accommodates successful secessionist movements in English colonies, viz. by treating what occurred in the seceding territory as a revolution in which the court’s own territorial jurisdiction has been lost. That doctrine worked before. It will work again.

As I’m on the road, I’ll make a few sketchy points on these illuminating comments, starting with John Gardner’s. (Richard Bellamy depends on a similar argument.) John gives a fair account of my view. We disagree, I think, about one political point and one legal point. The political point is his last one: it would be better, John thinks, for courts to ignore referendum results on independence, unless and until they result in revolution, in which case courts should acknowledge reality. I would like the courts to acknowledge reality earlier, and thus to help provide for a lawful road to independence, if that is what, say, Scotland were to choose. (John is right, by the way, that my main interest is in the appropriate judicial response to such events. Brexit caught my attention mainly because of the courts sweeping dictum about any and all referendums.) The Canadian Supreme Court did that in the judgment I mention in the post. I think this involves the basic recognition rules in a legal system, to the extent that it blurs the boundary between ‘binding’ and ‘merely advisory’ acts. [Query: when did this sort of advice become ‘mere’, as it now universally is in the press? I guess 1776 and 1688 were merely advisory?] I am happy for that line to be blurred, and for things other than statute and common law to become persuasive sources.

Tom Hurka wonders whether the UK result satisfies the Canadian test. I think it does. I don’t think that a ‘clear’ result has to be a large majority, though it does have to be one beyond serious doubt. (So no, not 50% + 1 person.) Of course, there are good reasons for supermajority rules in constitutional amendment. The UK has no special procedure for constitutional amendment. Maybe it should. That will please the Diceyans no more than my suggestion.

Perhaps the deepest challenge comes from Chris Bertram. I have some sympathy for his point that the electorate for this referendum was wrongly constructed. And I agree that ‘the people’ has no ‘natural’ definition. Nonetheless, I do think that there are some (socially, not legally constructed) peoples who have a (moral) right to decide for themselves what their most basic constitutional arrangements should be. Indeed, I think that even if the arrangements they would choose for themselves are less democratic than the arrangements they should ideally have. (See Rawls on ‘decent’ peoples.) But this is not really adequate to his worry. I will come back to this elsewhere.

I wasn’t clear; or I misunderstood you; or both. A critical point I thought you were making was that the DC was to be criticised for treating the referendum vote itself as essentially irrelevant to its analysis, and that it could and should have found a way to respect/give weight to the referendum result more wholeheartedly. And that’s the point which, whatever its political attractions, seems to me to be very weak, and anyway wasn’t argued.

Stripped down, the problem here is super simple and pretty dull: is there a common law aka prerogative power to serve an article 50 notice?

However one cuts it, it’s very hard to structure the problem on any even approximately orthodox basis as one in which the referendum features relevantly. There are really only two possibilities. (1) The prerogative power *survived* the ECA and its various accretions; in that case the executive didn’t need a referendum to give an article 50 notice. (2) The prerogative power was impliedly *curtailed or superseded*, in which case there really isn’t any room for argument that the Referendum Act conferred the necessary statutory power, though it easily could have. You seem to criticise the court for not taking a third position: a prerogative power that remained but became conditional upon a popular vote by referendum. But that would be a totally novel constitutional animal; it would have some pretty obvious definitional problems; and it wasn’t being argued for by anyone. I guess never say never, but expecting something like that from a first instance court is as close to never, I’d have thought, as one dares to get.

The court was, and in my view the SC will be, really driven to choose between a binary alternative: a *very* loosely constrained common law power or no common law power. In either case, the referendum is legally irrelevant, and nobody suggested anything else. The “off menu” approach you suggest wasn’t really available, and the insistence on the irrelevance of the referendum result to the outcome of the case was sound.

Whether faced with that binary choice the DC made the right decision is, I agree, much harder (for the reasons you and the pieces you cite give, among others; I don’t regard your direct effect argument as ludicrous at all — but that’s a different matter). Ditto whether the basic structure which imposed that choice is an effective piece of constitutional architecture or a bad one. Ditto whether the government was wise not to argue something along the lines you suggest, or might get some traction with such an argument in the SC, which has more chance to innovate anyway, though I’d have my doubts.

[…] I have not said anything about the role of the referendum. For all its crucial importance for the government’s decision, it is incidental to the points of constitutional principle that I have aimed to explain. It may seem that the royal prerogative really is constitutionally unprincipled, because the implication of this note is that any Prime Minister could have sent a letter triggering Article 50 to the European Council at any time since the Lisbon Treaty in 2009, in a fit of pique, ending the UK’s membership! But in fact, the British government is much more closely constrained than that, and the current protracted crisis illustrates the pressure that the executive is under, in its exercise of the prerogative. If you think that the government’s current proposals to trigger Article 50 are an exercise of arbitrary power, just ask yourself whether any government would have contemplated acting on behalf of the Crown to trigger Article 50 on a whim, without the earthquake of the referendum result (and for an argument that the referendum is highly relevant to the legal issues in the Miller litigation, see Professor Leslie Green’s post, ‘Should Parliamentary Sovereignty Trump Popular Sovereignty?’). […]

(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

I would like to pick up on this point. General elections are referenda by another name. If results of referenda are no more than advisory, then a number of questions follow: what is the legal status of general election results? results of general elections are not legally binding? results of general elections are no more than advisory, but to whom?

I agree. What statute makes general elections binding and if the DC decision is correct then surely acts of parliaments are required to be passed in order to allow a government to form otherwise the royal pregorative is being applied despite it affecting domestic law.

The real question of law is , I think, whether the 2015 Act providing for the 2016 referendum provided for the UK’s statutory decision to leave the EU.

Such an interpretation would sweep away all the difficulties of the case.

A statutory decision to leave the EU would be entirely lawful because its high-policy objective would precisely be to extinguish the obligation to give EU rights domestic effect. It would also be a statutory human-rights proportionality balancing exercise.

This is why the Supreme Court focus should be on who has power to take the UK’s decision to leave the EU and not focus on the international law obligation to notify. If there has already been a lawful decision to leave the EU, then the UK potentially faces infringement action for breach of the duty to notify.

The 2015 Act neither expressly states the Act provided for a statutory “decision” nor states it was “advisory”.

That is why a Pepper v Hart [1993] AC 593 reading against all the Hansard evidence is necessary:

The government proposers in the Commons (Philip Hammond) and Lords (Baroness Anelay of St Johns) clearly stated that the intention of the Bill was to provide for a “decision”. This can be read into the Act on a Pepper v Hart reading.

The Supreme Court should focus attention on the interpretation of the 2015 Act and the decision to leave the EU.

A statute providing for a referendum which gives a statutory decision on a referendum question is not some kind of displacement of Parliamentary sovereignty by popular sovereignty, it is an exercise of Parliamentary sovereignty.

Les Green’s article is IMO excellent as are so many of the following comments which serve to illustrate the complexities of the legal implications of the recent HC case. I find it hard to disagree, for example, with Oxjuris’ point about precedents being set by British governments in accommodating successful secessionist movements in the past, treating what had occurred “as a revolution”. Is this not precisely the situation brought about by the result of the referendum of June 23rd?
Again, Paul Stanley’s question left hanging in the air about the Royal Prerogative – did the PR survive the passing of the ECA ’72, or was it impliedly “curtailed or superceded”?
Then there is the quoted clause of Article 21 by Steve Gwynne of the Universal Declaration of Human Rights “the will of the people shall be the basis of the authority of government”. Surely there could not be a plainer example of the “will of the people” than the referendum result warranting government authority for use of the RP to invoke Article 50?
As I understand the discussion about the RP the main argument the High court judges used was the idea that prerogative powers of Ministers can never be used to change UK law. What do they think has been happening for the 44 years of our membership of the EU? Time after time Ministers have consented to an EU law under prerogative powers which directly changed UK law. The question then arises why did they approve and encourage this process, and then turn round when we wish to use the same method to restore UK Parliamentary control and say it cannot be done?
By extension, if the use of prerogative powers made over many years remained legal and uncontested for the application of treaties into UK law from Rome to Lisbon, but without special parliamentary approval, what justifies the abandonment of that same principle to substitute the approval of parliament without the RP?
As a non lawyer or constitutional expert I would be grateful for suggested answers to this apparent illogicality.
However, the clinching argument for me is the striking simplicity of Sean Feeney’s point “The real question of law is , I think, whether the 2015 Act providing for the 2016 referendum provided for the UK’s statutory decision to leave the EU. Such an interpretation would sweep away all the difficulties of the case.”
I agree too with his suggestion that “the SC focus should be on who has power to take the UK’s decision to leave the EU?” – which question echoes Les Green’s important comment: “the people have a right to decide for themselves the most basic terms of their constitution. I wholly agree. That principle was I think followed in 1689 with the emergence of our own Bill of Rights and now in a different form has been repeated in 2016.

It is perhaps unclear from the phrase “established and authorised” above whether the appellant will resile from the concession recorded at [105] of Miller that the 2015 Act does not supply a statutory power to give notice under Article 50 or whether the appellant will continue to rely on the Royal Prerogative:

“105. The Secretary of State’s ease [case] regarding his ability to give notice under Article 50 was based squarely on the Crown’s prerogative power. His counsel made it clear that he does not contend that the 2015 Referendum Act supplied a statutory power for the Crown to give notice under Article 50. He is right not to do so. Any argument to that effect would have been untenable as a matter of statutory interpretation of the 2015 Referendum Act. ”

However, “Lawyers for Britain” have announced they intend to apply to intervene in the Supreme Court appeal, and will place considerable reliance on the 2015 Act:

” The referendum was authorised by Parliament to give effect to a clear and unequivocal pledge in the General Election manifesto of the winning party that the people would decide (not merely advise on) the question of our membership of the EU. We believe that the outcome gives rise to a clear and unambiguous constitutional mandate to implement the people’s decision to leave which must be respected by government and Parliament, and reject the suggestion that the referendum was merely “advisory”.http://www.lawyersforbritain.org/referendum-article-50-case.shtml

Their preliminary arguments suggest they will place considerable reliance on Pepper v Hart statements in Parliament to the effect that “the referendum would allow the British people to decide the question of whether we remain or leave”:

Somewhat astonishingly, the Supreme Court has published a 9 November lecture by Supreme Court Justice Lady Hale, who will hear the Brexit appeals as the Supreme Court is currently intended to sit en banc, in which she says the referendum was “not legally binding”:

“As is well known, the referendum on whether the United Kingdom should leave or remain in the European Union produced a majority of 51.9% in favour of leaving. But that referendum was not legally binding on Parliament.”
The Supreme Court: Guardian of the Constitution? Sultan Azlan Shah Lecture 2016, Kuala Lumpur
Lady Hale, Deputy President of the Supreme Court 9 November 2016https://www.supremecourt.uk/docs/speech-161109.pdf

This appears to publicly prejudge matters of statutory construction which may still be in issue in the appeals, especially if the application to join the appeal by interveners Lawyers for Britain is granted.

Lady Hale’s description of the referendum as “not legally binding on Parliament” is interestingly distinct from the Divisional Court’s term “advisory”.

If the Supreme Court finds the 2015 Act provided for a decision, it could find that such a decision authorised by Parliament and legitimated through a referendum could only be superseded by a decision legitimated by a second referendum (which is not now on the political horizon).

Sean: Lady Hale’s description of the the referendum as ‘not legally binding on Parliament’ is totally anodyne, because nothing is legally binding on Parliament. That is the heart of the doctrine of Parliamentary Sovereignty. Parliament could repeal the 2015 Act tomorrow, with retroactive effect, and thereby make the referendum result count for nothing – not even ‘advisory’. That is because Parliament could repeal any legislation tomorrow with retroactive effect. The question in the litigation is not what Parliament could do. The question is whether there is anything that Parliament still NEEDS to do before the Government can act on the referendum result by triggering Art 50.

Steve and Anthony: General Elections are not ‘referenda by another name’. They are closely regulated by vast swathes of Parliamentary legislation. Under that legislation the results at constituency level are legally binding concerning who becomes an MP for which constituency. Who forms a Government following a general election is a separate question. It depends on who can command a majority in Parliament, i.e. it is a de facto rather than a de jure question. But none of this can possibly be described as ‘advisory’. Whereas the referendum result is, according to the High Court, advisory. Whether the High Court is right about this is one of the questions that the Supreme Court will be asked to consider. But there is clearly no analogous question about General Elections.

I think Lady Hale should definitely sit on the appeals (I’m actually hoping she will say Parliament knew nothing of the will of women in Dicey’s time); but I believe she has made a public idiot of herself. You disagree. Fine.

On the substantive point: what is in issue is the “constitutional requirements” in the context of Article 50 decisions. These can only be known when declared by the Supreme Court.

I am not talking about repeal of legislation. I am talking about superseding a policy decision.

There is no authority on whether a high-policy statutory decision taken by referendum provided for by statute can be superseded by a mere Act of Parliament. That novel context was provided for by Parliament itself: See the ratio of the Court of Appeal in Shindler & Anor v Chancellor of the Duchy of Lancaster & Anor [2016] EWHC 957 (Admin); and the evidence of the Government proposers in Hansard and then look to Pepper v Hart [1993] AC 593.

Look at say the disjuncts in Article 21(1) of the Universal Declaration of Human Rights (“directly” or “through freely chosen representatives”):

Article 21.

(1) Everyone has the right to take part in the government of his country, directly or through freely chosen representatives.
(2) Everyone has the right of equal access to public service in his country.
(3) The will of the people shall be the basis of the authority of government; this will shall be expressed in periodic and genuine elections which shall be by universal and equal suffrage and shall be held by secret vote or by equivalent free voting procedures.

These disjuncts are conjoined in any decision taken by referendum provided for by statute. That increases the legitimacy of the decision in my view.

Then look to the Speech of Lord Hoffman in Regina v Lyons and others (Appellants) (on appeal from the Court of Appeal (Criminal Division):

‘And English courts will not (unless the statute expressly so provides) be bound to give effect to interpretations of the treaty by an international court, even though the United Kingdom is bound by international law to do so. Of course there is a strong presumption in favour of interpreting English law (whether common law or statute) in a way which does not place the United Kingdom in breach of an international obligation. As Lord Goff of Chieveley said in Attorney-General v Guardian Newspapers Ltd (No.2) [1990] 1 AC 109, 283:
“I conceive it to be my duty, when I am free to do so, to intepret the law in accordance with the obligations of the Crown under [the Convention]”.

’28. But for present purposes the important words are “when I am free to do so”. The sovereign legislator in the United Kingdom is Parliament. If Parliament has plainly laid down the law, it is the duty of the courts to apply it, whether that would involve the Crown in breach of an international treaty or not.’

An argument is not hard to formulate, including on other treaties; but that does not mean one will be advanced.

Any finding would be obiter; but I think it would be helpful guidance for the dictum or dicta to be stated.

Brexit is going to happen (the Labour Party have stated they will not oppose Brexit).

It would be reasonable for the Supreme Court to give some assurance to potential trade partners that the UK will honour future obligations under international law at a time when new trade agreements are in prospect.

The matters that will be of most concern to the Supreme Court aren’t necessarily being discussed.

Sean, I don’t see how Article 21 bears on the case at all. Parliament’s ignoring the referendum (e.g. by retrospectively invalidating its result) would not breach Article 21 in any way. Nothing in it suggests that the ‘direct’ expression of popular will is to take precedence over the ‘indirect’. In fact 21(3) makes the indirect expression (via open general elections) the one that is decisive in determining the will of the people. If there were a general election tomorrow, and a remain party won a workable majority with a manifesto commitment retroactively to repeal the 2015 Act, that would be it for Brexit so far as Article 21 is concerned. There would be no reasonable Article 21 argument for invalidating the result of the general election or for countermanding the commitment in the manifesto.

And that would also be it for Brexit so far as the British constitution is concerned: the ensuing Brexit Repeal Act would clearly be legally effective. So I am at a loss as to why you attach the word ‘mere’ before the words ‘Act of Parliament’. By doing so you are reversing the long-established British constitutional position. Under our existing constitution, no Act of Parliament could possibly be ‘mere’. The question is why a *mere* referendum, that has whatever force it has only thanks to an Act of Parliament, should necessitate a change in our constitution so as to make it irreversible by Act of Parliament. If the courts could decide the case on narrower grounds that do not require such a vast ‘activist’ constitutional move, surely they should. (Remember the dire effect that Lord Denning had on English law?) The Government knows this and will not attempt to argue that Parliament’s authority is ever ‘mere’. They would be toast in the Supreme Court, and also in Parliament, if they did.

I am of course talking about the constitution. You also raise the separate question of legitimacy. We may disagree about this topic too. I’m pretty sure I disagree with Les about it. Les says: ‘Popular sovereignty is a moral ideal. Parliamentary sovereignty is an institutional device.’ I reply: a popular referendum is an institutional device too. We only care about what the numerical majority of the population wants because we need some way to settle large-scale conflicts. That is the same reason we have a Parliament. The discussion is only about whether Parliament does a better job. Given that the in-out referendum has inflamed the large-scale social conflict about our national destiny rather than settling it, it tends to reinforce the case for leaving such matters to Parliament in future. (Whether that can still be the case regarding Brexit itself is of course a more difficult problem: probably once the referendum has been held, we are stuck with its result, and Parliament has to go along with it. The point is only that we shouldn’t fall for the ‘a referendum will settle it’ shtick again.)

“What is the argument on the other side? Only this, that no case has been found in which it has been done before. That argument does not appeal to me in the least. If we never do anything which has not been done before, we shall never get anywhere. The law will stand still whilst the rest of the world goes on; and that will be bad for both. [1954] All ER 22.”